MICHEL MARTIN, HOST:
The Trump administration is refusing to give a federal judge more information about the way it went about deporting hundreds of Venezuelan migrants to El Salvador. Last night, government lawyers invoked the state secrets privilege to keep Judge James Boasberg from gathering more details about the flights. The judge wanted those details to determine whether officials violated his order to pause the deportations because of a lack of due process. The Justice Department says that that information would, quote, "undermine or impede future counterterrorism operations," unquote. To get a better understanding of what's going on here, we called someone who has had key positions at the Justice Department and Immigration and Customs Enforcement in the Obama administration. That is Elliot Williams. He was an assistant director at ICE and a deputy assistant attorney general at DOJ, and he's with us now. Good morning.
ELLIOT WILLIAMS: Hi, Michel.
MARTIN: So what is state secrets privilege, and when is it typically invoked?
WILLIAMS: When we think about privileges, there are rules that allow material to be kept out of court. Everyone's heard about attorney-client privilege, where the things you say to your lawyer can't be brought into court, or spousal privilege, conversations you have with your husband or wife, or whomever else cannot be brought into court. And state secrets privilege allows the government, when the government is a litigant, to withhold some information from release in court that it has determined relates to national security. Now, to be clear, Michel, criticism of the state - of the use of the state secret privilege has been mounting for decades now. This idea that presidents or presidential administrations are getting quite aggressive and forward-leaning with how much they are asserting the state secret privilege, and to some extent, we're seeing that here.
MARTIN: So did the Obama administration use it? And if so, in what type of cases?
WILLIAMS: Oh, goodness. I think every administration has at some point. Now, the war on terror, which was prosecuted by both the Obama administration and the Bush administration. You know, they would often invoke such a privilege, and sometimes they win. Sometimes, they lose. But the fact is - and related to this case here - a presidential administration can't simply wave a wand and say that every word they utter related to national security ought be held out of court. And really, it is up to a judge.
MARTIN: Do they have to give the judge a reason why the specific information is covered by that privilege?
WILLIAMS: Absolutely, and they'll do it outside of public view. They will file sealed affidavits that you and I won't see. But the judge can make the determination as to whether, no, this question could jeopardize U.S. national security, therefore, ought not be released in public and court.
MARTIN: So the DOJ lawyers argue that the order - this - the Trumps - in this administration, obviously, argue that the order to pause these deportations is a, quote, "unprecedented and enormous intrusion on the powers of the executive branch," and they're saying that the judge doesn't have jurisdiction there. What do you make of that argument?
WILLIAMS: I don't think it's a particularly great argument for a host of reasons. I think they are basing their decision for removing these individuals on the 1798 Alien Enemies Act, which has really only ever been invoked in wartime, and attempting to make an argument that Venezuelan gang members, or alleged Venezuelan gang members in the United States, are themselves engaging in an incursion that is tantamount to an act of war. That is a very broad reading of that statute. In so doing, what the administration has done is then been able to hide behind the state secrets privilege and say that, well, we can't talk about why these gang members, or alleged gang members, are here and what they've done. And so it - you know, it's - and the judge in this matter is merely attempting to get to the bottom of, who are these people? You know, what's your basis for removing them, and what is the evidence you have linking them to acts of the Venezuelan government or acts of international security?
MARTIN: What I think I hear you saying is that this administration is not even willing to make the argument to the judge, even privately.
WILLIAMS: Yeah.
MARTIN: Is that accurate? And so what I heard you say earlier is that there are typical disagreements between an administration's efforts to use its authorities as it sees fit and the check provided by the courts. And what I think I hear you saying is that this is out of the bounds of those types of disagreements. Is that accurate?
WILLIAMS: Yes, I think that's absolutely accurate. And I think it's perfectly - it's healthy for our government, for the executive branch to be able to assert its authorities in front of a court. But the notion that the court simply has no jurisdiction over them or ought not be able to even review the question is silly. And moreover, the administration's not doing itself any favors by personally attacking the judge repeatedly and the integrity of the court. So there's a bigger, broader question of public faith and institutions here that the administration is at the heart of, but certainly - but the core question of does a judge even have the authority to weigh the question is an important one.
MARTIN: Before we let you go, is this case likely headed to the Supreme Court?
WILLIAMS: I think it is. Whoever loses this appeal that - you know, they - there was an appeal that went to the appeals court here in Washington, D.C., just yesterday. Whoever loses that on a very technical question that came up yesterday is going to appeal this to the Supreme Court, and they have an interest in taking it simply because of, you know, the importance of these national security and constitutional questions.
MARTIN: That's Elliot Williams. He is a CNN legal analyst and former assistant director for legislative affairs at U.S. Immigration Customs Enforcement, or ICE, under the Obama administration. Thanks so much for joining us.
WILLIAMS: Always great to talk to you, Michel. Take care. Transcript provided by NPR, Copyright NPR.
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